Tulsa Law Review Volume 44 Issue 4 The Scholarship of Richard A. Epstein Summer 2009 Relational Markets in Intimate Goods Michele Goodwin Follow this and additional works at: https://digitalcommons.law.utulsa.edu/tlr Part of the Law Commons Recommended Citation Michele Goodwin, Relational Markets in Intimate Goods, 44 Tulsa L. Rev. 803 (2013). Available at: https://digitalcommons.law.utulsa.edu/tlr/vol44/iss4/8 This Legal Scholarship Symposia Articles is brought to you for free and open access by TU Law Digital Commons. It has been accepted for inclusion in Tulsa Law Review by an authorized editor of TU Law Digital Commons. For more information, please contact [email protected]. Goodwin: Relational Markets in Intimate Goods RELATIONAL MARKETS IN INTIMATE GOODS Michele Goodwin* This symposium is dedicated to examining the rich body of work of an enormously talented scholar and scribe of the law, Richard Epstein. With a bibliography so extensive, nearly a dozen scholars were sought to meet this inspiring challenge. As an honored participant, it was my pleasure to ruminate on the overlap between my work and that of Richard's on the body market. Of course, defining Richard Epstein's work is at times the work of defending Epstein's work. Epstein writes with intensity and integrity, unpacking that which brings about a bit of controversy-not as a trope for inciting critique-but rather speaking honestly to issues otherwise ignored, or treated with the most insincere forms of social correctness. Some might offer that he writes with an aura of defiance, often resistant to embracing conventional wisdom simply because others choose to follow that path, even within law and economics, a field that he has come to shape, define, dominate, and defend. This project places at its intersection my shared interests with Richard Epstein, in part as a tribute to his distinguished catalogue of scholarship, and also because we share an urgent vision about organ transplant policy in the United States. The urgency for a more responsive transplant policy was publicly revealed in stark and chilling ways during the summer of 2009 through the federal indictment of Levy-Izhak Rosenbaum, a New Jersey rabbi who brokered organs on the black market.1 In many ways, Rosenbaum's lucrative underground business of coordinating kidney transplants for a of a problematic federal system that regards creative steep fee flourished as a by-product 2 organ procurement regimes through a punitive lens, rather than as "patient-proactive. Over the years, this federal system prohibited organ swaps, frowned on directed donations from strangers, 3 discouraged solicited donations, 4 dampened enthusiasm for * Everett Fraser Professor of Law and Professor of Medicine and Public Health, University of Minnesota. I am grateful to Richard Epstein for inviting me to participate in this special symposium. He is a terrific scholar, but more importantly my friend. I would also like to thank the editors at the Tulsa Law Review. I. See Talk of the Nation, "The International Organ Trafficking Market" (NPR July 30, 2009) (radio broad.) (transcr. available at http://www.npr.org/templates/story/story.php?storyld = 1 11379908). 2. See e.g. Michele Goodwin, The Body Market: Race Politics & Private Ordering, 49 Ariz. L. Rev. 599, 627 (2007). 3. Though direct donations do not involve monetary transfer, given the international black market in organ trade, there is a shadow market price (value) inherent in the exchange itself. See generally Charles T. Carlstrom & Christy D. Rollow, The Rationing of Transplantable Organs: A Troubled Lineup, 17 The Cato Journal 163, 172-73 (Fall/Winter 1997) (available at http://www.cato.org/pubs/joumal/cj l7n2-3.htnl); but see Legality of Alternative Organ Donation Practices Under 42 U.S.C. § 274e, 31 Off. Leg. Counsel § 1 (2007) (available at http://www.justice.gov/olc/2007/organtransplant.pdf). 4. Arthur Caplan argues that solicited donations undercut the "ability of the system to get organs to those most in need." Arthur L. Caplan, James J. McCartney & Dominic A. Sisti, Health, Disease, and Illness: Published by TU Law Digital Commons, 2008 1 Tulsa Law Review, Vol. 44 [2008], Iss. 4, Art. 8 TULSA LA W RE VIEW [Vol. 44:803 funeral benefits from states, and treated with wary skepticism online organ matching systems like MatchingDonors.com. 5 More disturbingly, the federal system prohibits any organ exchanges that involve "valuable consideration," 6 which could include something as innocuous as a cup of coffee or slice of bread. 7 Violation of NOTA can result in a felony conviction, with a five year prison term and fifty thousand dollar fine. 8 Some doctors and hospitals refuse to service these alternative transplants, arguing that even if the law is not enforced as to these types of donations, they violate the spirit of the transplant policy and harm the interests of waitlist patients. 9 Ultimately this restrictive system results in thousands of deaths each year. This article moves beyond challenging the choir and debating the alienability of human biologics, to discuss how relationships create private markets and might serve as a platform in the domain of biological supply. This may be where Epstein and I part company, though, I think, only by a matter of degrees. Specifically, this article considers whether intimacy has a role in markets and if so, how intimacy functions with regard to supply and demand. My analytical hunch, that organ platforms allowing individuals to maximize relational value-without legal penalty--could enhance organ supply, derives in part from other human biological domains, and a growing body of empirical evidence that illustrates that choice and relationships matter in human biological exchange. 10 Organ transplant waitlists reveal a grim national story of pain, delay, and death. Men and women suffering from infertility, as well as gay couples, lament their reproductive predicaments and attempt to resolve this plight usually through the explicit use of markets.1 1 Women who, for a complicated and often compelling list of reasons, including what some doctors refer to as a "hostile womb," cannot carry a fetus to term, lease the wombs of other women. 12 Infertile couples less concerned about genetic matching utilize a sophisticated network of agencies-that for often exorbitant fees- 13 connect would-be parents with the child they desire. In part, the demand for most human biologics can be attributed to advancements in biotechnology. Sophisticated laboratory techniques allow for the creation of embryos Concepts in Medicine (Georgetown U. Press 2004); but see Richard A. Epstein, The Human and Economic Dimensions ofAltruism: The Case of Organ Transplantation,37 J. Leg. Stud. 459, 489 (2008). 5. See e.g. Patrick D. Carlson, The 2004 Organ Donation Recovery and Improvement Act: How Congress Missed an Opportunity to Say "Yes" to FinancialIncentives for Organ Donation, 23 J. Contemp. Health L. & Policy 136, 146 (2006); Epstein, supran. 4, at 490-91. 6. 42 U.S.C. § 274e(a) (2001). 7. Id. 8. Id. at § 274e(b). 9. See Virginia Postrel, "Unfair" Kidney Donations, Forbes Mag. 124, 124 (June 5, 2006) (quoting Douglas Hanto, stating "we won't do them," referencing transplants that involved solicitations and negotiations outside of the UNOS waitlist process); United Press Intl., Organ Donor Club Grows, Has Critics, http://www.physorg.comnews69600196.html (June 14,2006) ("Dr. Douglas Hanto of Harvard Medical School said organs should go to the person who needs it the most, not to people because they are members of a club."). 10. See e.g. Sharon R. Kaufman, Ann J. Russ & Janet K. Shim, Aged Bodies and Kinship Matters: The Ethical Fieldof Kidney Transplant, 33 Am. Ethnologist 81, 82 (Feb. 2006). 11. See e.g. Margaret J. Radin, Market-Inalienability,100 Harv. L. Rev. 1849, 1928 (1987). 12. See e.g. Ugly Betty, "Zero Worship" (ABC Jan. 10, 2008) (TV series) (in this episode, Wilhelmina cannot carry a child because she has a hostile womb and thus seeks a surrogate). 13. See Cheryl Miller, Babiesfor Sale, 13 New Atlantis: A J. of Tech. & Socy. 94, 95 (2006). https://digitalcommons.law.utulsa.edu/tlr/vol44/iss4/8 2 Goodwin: Relational Markets in Intimate Goods 2009] RELATIONAL MARKETS IN INTIMATE GOODS outside of the womb, laparoscopic organ retrieval and transplant, and the utilization of human tissues typically discarded. 14 But there is an equilibrium problem; usually demand outpaces supply in the natural sphere and individuals must turn to alternative means to acquire the biologics they desire. This disparity between supply and demand persists across a broad spectrum of demand for biologics that can only be derived from humans, and usually, most preferably from living persons-though exceptions exist. The supply and demand regimes for ova, organs, and children, are treated differently legislatively and in public thought. The dual statuses of intimacy are employed here-both as a metaphor for relationships and affinity linkages (based on race, gender, or even religion), and also as the term relates to the exclusively yours: biological goods, such as kidneys, ova, sperm, and babies. Does intimacy constitute a market on its own? The primary thrust of this project considers whether the law has the capacity to tolerate "markets" or "cooperatives" based on affection, affinities, or intimate relationships for human biological supplies given that they tend to discriminate. In part, the law currently acts blind to some preference grouping even when there may be a negative social impact, while policing other "members only" services. 15 Sophisticated baby markets, where complex negotiating and matching of preferences usually coincides with other forms of matching according to race, gender, and ethnicity, provide ample evidence supporting this point. On the other hand, policies that limit access to or exclude members of 16 particular groups by race, gender, and religion are typically unconstitutional.